Health Club Wars

Hadas Guvrin is a former aerobics champion and trainer of physical trainers. Now having reached the age of 40 she runs a couple of fitness clubs called PhysiKal (Kal mean easy in Hebrew) in the Hod Hasharon and Ramat Gan regions. The clubs have some 30,000 members.

A second fitness club called Switch, based in Netanya used her picture to promote their club. The photo was run in 4 or 5 editions of the local paper and one street hoarding. Guvrin and PhysiKal sent a cease and desist letter and requested that Switch stopped using the picture and pay NIS 590,000 damages.

Switch took the picture down immediately and agreed to pay statutory damages of NIS 20,000 for copyright infringement.

A year later, Guvrin and PhysiKal sued Switch and owners Shermeister and Frankel for copyright infringement, moral rights infringement, unjust enrichment, passing off, and damage to Guvrin’s privacy. They also requested a public apology from the defendants and an injunction against further usage of the picture.

Judge Amiram Binyamini accepted that there was copyright infringement, but ruled that the advertising campaign should be considered as a single incident and awarded maximum statutory damages of NIS 20,000 under the Old Law (pre 2007). He accepted that the copyright in the picture was indeed owned by the client, i.e. the fitness club, but ruled that the moral rights were owned by photographer who wasn’t a plaintiff, therefore dismissed the moral rights claim.

As to the tort of Passing Off, although damages of up to NIS 100,000 could be awarded, Judge Binyamini ruled that the plaintiff was entitled to damages under either Copyright Infringement or Passing Off, but not both. In view of the short time period that the campaign ran and the different geographical location of the two clubs, he saw no reason to increase the damages for Passing Off beyond the NIS 20,000 already awarded for Copyright Infringement.

As to Unjust Enrichment, Binyamini ruled that the plaintiffs had failed to show that the defendants had attracted members as a result of the activity. At best, they had saved themselves the cost of a stock photo under terms of non-exclusive use, which was a saving of perhaps tens of dollars, and thus negligible in light of the NIS 20,000 already awarded.

Since Hadas Guvrin had used her picture to promote fitness clubs herself, privacy wasn’t an issue either.

As four years had passed since the infringement, Judge Binyamini declined to order a public apology. He also felt the permanent injunction was unneccessary since the defendants had stopped using the picture immediately, and considered it requested merely to send the case to the District Court, but saw no reason not to issue it.

He noted that the defendants had offered NIS 20,000 at the outset, and taken down the picture immediately, so there was really no reason for the case to go to court. Furthermore, the defendants had offered to allow the case to be decided under Section 79a of the civil procedures, without evidence being heard, but the plaintiffs had insisted otherwise. Nevertheless, since the defendants had offered some fairly ridiculous defences as to why there was no copyright infringement and had insulted Ms Guvrin in one of the newspapers, he awarded a further NIS 10,000 legal fees.

This seems to be a balanced ruling and Judge Binyamini is correct, the case was a waste of the court’s time. With a lot of daily commuters from Netanya to Ramat Gan, I am not convinced that the different geographical locations is important, but the judge is correct, that there was no evidence of actual damage.